4 posts from January 29, 2012 - February 4, 2012

February 02, 2012

The Ninth Circuit ruled today that District Judge James Ware (who replaced retired Judge Vaughn Walker) abused his discretion by ordering the public release of videotapes made of the trial in which the constitutionality of Prop 8 was successfully challenged.

The unanimous opinion, written by Judge Stephen Reinhardt, was limited to the specific facts of this case, and ventured no position on the broader questions of public access to judicial proceedings by electronic means. The court stated that "The trial judge [Walker] on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast...[T]he integrity of the judicial process is a compelling interest that in these circumstances would be undermined by the nullification of the trial judge's express assurances..."

February 01, 2012

The Department of Housing and Urban Development has issued its final rule prohibiting discrimination based on sexual orientation or gender identity in HUD-assisted or -financed housing. The rule also bans inquiries as to these characteristics, and specifically defines "family" to include lgbt families. The regulation will be published in the Federal Register next week, and go into effect 30 days after the date of publication.

Requires owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter- or owner-occupied. HUD will institute this policy in its rental assistance and homeownership programs, which include the Federal Housing Administration (FHA) mortgage insurance programs, community development programs, and public and assisted housing programs.

Prohibits lenders from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for FHA-insured mortgage financing. FHA’s current regulations provide that a mortgage lender’s determination of the adequacy of a borrower’s income “shall be made in a uniform manner without regard to” specified prohibited grounds. The rule will add actual or perceived sexual orientation and gender identity to the prohibited grounds to ensure FHA-approved lenders do not deny or otherwise alter the terms of mortgages on the basis of irrelevant criteria.

Clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, will have the opportunity to participate in HUD programs. In the majority of HUD’s rental and homeownership programs the term “family” already has a broad scope, and includes a single person and families with or without children. HUD’s rule clarifies that otherwise eligible families may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship.

Prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant or occupant’s sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available. In response to comments on the proposed rule, HUD has clarified this final rule to state that this provision does not prohibit voluntary and anonymous reporting of sexual orientation or gender identity pursuant to state, local, or federal data collection requirements.

The Ninth Circuit posted an announcement today that it will issue its decision tomorrow on whether the videotapes of the trial in the Perry case must be released to the public. The District Court judge ruled that they should be, but the Court of Appeals then stayed any release pending its decision (after a separate oral argument just on the stay). If this court affirms the original ruling of the trial court, it may or may not also suspend actual release until the Prop 8 proponents have time to seek review either en banc or before the Supreme Court. Meanwhile, the clerk of the Northern District of California, where the case originated, announced that even without a built-in stay, that court won't be able to process release of the tapes until at least next week.

Whatever. I can't get very excited, frankly, about whether these tapes are released. Yes, they will provide the material for lots of terrific quickies on YouTube, and these might have educational value, but I'm dubious about how many people's minds will be changed by seeing them. The legal point - public access to judicial proceedings - is important, but muddied by representations made during trial that there would be no public release of these recordings. And I don't think that the court's ruling on this point will predict anything about how the ruling on the merits will come out.

Oh yeah...what about that ruling on the merits? I've been asked a couple of times why I think it's taking so long. Actually, it hasn't taken any longer than I expected. If the case had not been set for expedited consideration, this phase might well drag on for months. But it is on an expedited track, and for that reason, my guess is that it won't be much longer. If I had to bet - which thankfully I don't - I would wager that there will be a ruling this month. Valentine's Day?